Kisimusi Dhlamini and Ghandi Mudzingwa v Kembo Mohadi N.O. (Co-Minister of Home Affairs) and Others

The applicants were granted bail by the High Court on 9 April 2009. The Attorney-General invoked section 121(3) of the Criminal Procedure and Evidence Act, giving notice of intention to appeal and thereby precluding their release for 7 days. On 14 April 2009, the Attorney-General filed an application for leave to appeal, which was granted on 17 April 2009, and the appeal was filed with the Supreme Court on the same day. On 17 April 2009, in unclear circumstances, the applicants paid the bail amount and were released from custody. They were admitted to Avenues Clinic for medical treatment and placed under guard, initially by prison officers and later by police officers. The applicants sought an order removing the police guard and declaring any form of guard unlawful.

• Whether the Attorney-General's notice of appeal was filed within the prescribed 7-day period under section 121 of the Criminal Procedure and Evidence Act
• Whether the 7-day period for filing an appeal against bail should include or exclude weekends and public holidays
• Whether the Supreme Court Bail Rules (specifically Rule 3) are intra vires the enabling Act and consistent with section 121 of the Code
• Whether the police guard imposed on the applicants was lawful

The application was dismissed with no order as to costs.

When calculating the 7-day period prescribed in section 121 of the Criminal Procedure and Evidence Act for filing an appeal against a bail decision, weekends and public holidays must be excluded from the computation. This is because Rule 3 of the Supreme Court Bail Rules 1991, which was lawfully enacted under section 34 of the Supreme Court Act, expressly provides for such exclusion. Where an Act of Parliament is silent on the method of computing time periods, properly enacted subsidiary legislation (rules of court) that addresses this lacuna must be applied as an integral part of the statutory framework, provided such rules are intra vires the enabling Act and do not conflict with the primary legislation.

Patel J expressed doubt as to whether the admission of a person to bail can properly be perceived as an interlocutory order or judgment, noting that the same doubt was shared by Chidyausiku CJ in Attorney-General v Mpofu & Anor 2002 (1) ZLR (S) 670. However, the learned judge observed that for purposes of section 121 of the Code as read with section 44(5) of the High Court Act, the refusal or grant of bail is to be regarded as an interlocutory order or judgment, with the practical effect being that the Attorney-General must obtain leave of a judge before appealing. The Court also observed that the reference to "rules of court" in section 44(5) of the High Court Act has no direct bearing on the interpretation and application of section 121 of the Code, as it refers to rules governing appeals against interlocutory orders in criminal proceedings generally, rather than rules specific to bail applications.

This case is significant in Zimbabwean jurisprudence (which shares common legal heritage with South African law) for establishing the method of computing time periods in bail appeal proceedings. It demonstrates the proper approach to interpreting statutory provisions in conjunction with subsidiary legislation (rules of court). The judgment clarifies the relationship between primary legislation and rules of court, confirming that where an Act is silent on procedural matters, properly enacted rules of court fill the gap and must be applied as an integral part of the statutory scheme. The case is also notable for its discussion of whether the grant of bail constitutes an interlocutory order and for its application of the principle that subsidiary legislation must be construed harmoniously with enabling legislation.